Defining Consent in Nebraska

August 03, 2017
By
McGoughLaw P.C., L.L.O.

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Upon hearing of accusations of sexual assault in Omaha, many may automatically assume that such offenses are perpetrated by deviants targeting random victims. In reality, however, rape and other sex crimes are often considered to be much more intimate. Data shared by DisasterCenter.com shows that as recently as 2015, there were 652 documented cases of rape in Nebraska alone. In many of those cases, the alleged victims likely knew their attackers. Those labeled as their attackers, however, may have not realized that the potential of their being accused of such a crime was present at all. They might have even reasonably believed that the encounters that led to them being charged were consensual.

Defending oneself against accusations of sexual assault requires that one first understand how the state defines consent (or better yet, a lack thereof). Section 28-318 of the Nebraska Revised Statutes states consent for sexual contact or activity is not present when:

One submits due to the use or threat of force or coercion

One expressly denies consent through his or her words

One denies consent through his or her conduct

One only gives consent after having been deceived as to the identity of the actor or nature or purpose of the act

The standard the state applies for understanding a denial of consent is whether a reasonable person would interpret an alleged victim’s words or actions as resisting another’s sexual advances. The law also states that resistance is not mandated to show a lack of consent if one believes such attempts would be futile. This, however, may open the door for legal challenges, as one may be questioned in simply assuming that had he or she simply voiced his or her resistance, the alleged attacker would not have stopped anyway.

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Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.